University students across the country held their breath this week when the Alberta Court of Appeal released its decision in Pridgen v University of Calgary,2012 ABCA 139 [Pridgen]. While on its face, the case decides whether universities are subject to Charter scrutiny, and whether the University’s discretion to impose disciplinary sanctions on theses students was reasonable – the implications for students reliant on Facebook’s social networking functionality appear far graver. This decision answers the following question: can the university could sanction students for comments posted on Facebook.

Facts and Judicial History

In the fall of 2007, twin brothers Steven and Keith Pridgen took a legal survey course at the University of Calgary. Professor Aruna Mitra taught the course for the first time. Several students in the course, including the Pridgens, posted to a public Facebook wall, criticizing Professor Mitra and the course. There was even a group created and called, “I no longer fear hell, I took a course with Aruna Mitra.” Both brothers posted a comment to the group’s wall – Steven complained about a mark he received, and inquired about how he could apply to have it remarked. Neither brother responded to the highly critical and offensive comments students made regarding Professor Mitra’s qualifications.

Two months after the completion of the course, in February 2008, a student posted on the wall explaining her enthusiasm for her new law class. She also posted that to her knowledge, Professor Mitra was not teaching any courses that semester. Six months later, Keith Pridgen responded, based on a conversation he had with Associate Dean Brent regarding Professor Mitra’s marking:

“Hey fellow LWSO homees [sic]… So I am quite sure Mitra is NO LONGER TEACHING ANY COURSES WITH THE U OF C !!!!! Remember when she told us she was a long-term professor? Well actually she was only sessional and picked up our class at the last moment because another prof wasn’t able to do it … lucky us. Well anyways I think we should all congratulate ourselves for leaving a Mitra-free legacy for future LWSO students!”

Concerned about the page and its contents, Professor Mitra complained to Dean Tettey in September 2008. She was no longer employed by the university at that time. Dean Tettey treated the complaint as an allegation of Non-Academic Misconduct. Dean Tettey ultimately found all members of the Facebook group guilty of non-academic misconduct – irrespective of their activity within the group.

Both Pridgens appealed their sanctions to the Review Committee. Steven Pridgens notably explained that his post was a justifiable comment that ought to be protected as freedom of expression. He equated comments on the Facebook site with having an online conversation – one that is not meant to be the subject of intense scrutiny, similar to

“standing in the middle of the University of Calgary hallway and saying the exact same thing. It is openly, publicly available to anybody who is walking by.”

The committee upheld Dean Tettey’s finding of Non Academic Misconduct. Subsequently, the brothers tried to appeal the decisions of the Review Committee to the University’s Board of Governors. As per s 31(1)(a) of the Post Secondary Learning Act,SA 2003, c P-19.5 [PSL Act], disciplinary decisions of general faculty council are

“subject to a right of appeal to the board [defined as the board of governors of a public post-secondary institution]”.

However, the board refused to hear the appeal, because the students were only placed on probation and not fined, suspended or expelled.

Determined, the brothers applied for judicial review in the Court of the Queen’s bench. A comment on that decision can be found here. Briefly speaking, the Chambers judge found that the Charter applies to disciplinary proceedings taken by the university, and that those Charter rights were infringed.

What’s at Issue: 3 Judges – 3 Opinions

The University appealed to the Alberta Court of Appeal on two issues. The first was whether the Charter applied to university disciplinary proceedings, and the second was that the Chambers judge had erred in his ruling. In this appeal, the University alleges that the lower court judge substituted her own opinion for that of the Review Committee, and that she applied a standard of correctness to her review of the Committee’s decision, rather than the standard of reasonableness.

An interesting component of the Alberta Court of Appeal’s decision is the split unanimity of it. While all three judges upheld the Chambers judge’s decision to quash the Review Committee’s decision, they each wrote concurring opinions. The differences between the judges are nuanced; however, they have major implications as to the treatment of universities.

The first verdict, penned by Paperny J, insists that the Committee’s decision was not reasonable. The judge uniquely finds that the Charter applies, which essentially causes a revisiting of the Supreme Court of Canada’s decision in McKinney v University of Guelph, [1990] 3 SCR 229 [McKinney].

The second judgment, written by McDonald J, affirms the Chambers judge’s decision that the respondents’ comments did not constitute non-academic misconduct. However, the judge did not think that this court ought to reconsider whether or not universities are subject to the Charter. Since the decision could be decided entirely on established administrative law grounds, there was no need to resort to a Charter analysis here.

The third and final decision, written by O’Ferrall J, explains that the real issue in this case is whether in disciplining the students for their comments critical of a University employed lecturer, or for the students’ association with the Facebook group, the University’s disciplinary body ought to have considered whether its techniques violated the students’ right to the freedoms of expression and association. The judge takes the view of Alberta’s Bill of Rights, RSA 2000, c A-14, rather than the Charter. He stated that the Review Committee’s decision was unreasonable, because no consideration was given to whether expression and association were protected rights.

Revisiting McKinney?

Justice Paperny goes into a lengthy discussion as to Charter applicability. Section 32(1) of the Charter, 1982 explains that the Charter applies:

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Paperny J outlines five scenarios by which the Charter ought to apply: legislative enactments, government actors by nature, government actors by virtue of legislative control, bodies exercising statutory authorities and non-governmental bodies implementing government objectives. What becomes problematic in this decision is whether a university may be classified as a body of government, or doing something “governmental”.

In McKinney, the Supreme Court of Canada explained that a university is not subject to Charter scrutiny. Justice Paperny distinguishes Pridgen from McKinney; in the latter, the issue was whether the University of Guelph had infringed the section 15 rights (equality) of its employees, by imposing mandatory retirement at age of 65 on its professors.

“It did not deal… with the imposition of discipline or the relationship between university administration and students.”

She also insists that McKinney left the door open for certain activities conducted by universities to be considered governmental in nature. If that were the case, they would be subject to Charter scrutiny.

Agreeing with Justice Paperny, I believe this case provides the perfect opportunity to revisit McKinney. Not only was McKnney a split decision, but the justices all find that there may be some situations that could attract Charter scrutiny. Although I appreciate that universities would want academic freedom, and fear that if the Charter was to apply to them, they may be limited in their self-governance, the Charter is meant to reflect Canadian values. Moreover, scrutiny under it would not necessarily interfere with academic freedom.

The freedoms of expression and association are fundamental values that should not be limited – especially by institutions that are funded by the government. Simply because our generation has moved towards a more electronic platform for executing these values (case in point as I write in a legal blog), does not mean that the mode of the expression or association ought be stopped.

The comments expressed on the page may have been unnecessarily hurtful to Professor Mitra, but they did provide feedback on the course and information about the grade appeal process. This was a free flow of information – a tenet the Charter protects. If this mode of expression was forbidden, where would the line be drawn? Justice Paperny explained,

“Respecting Charter rights…will promote the institution as a place of discourse, dialogue and the free exchange of ideas; [with] all the hallmarks of a credible university and the foundation of a democratic society.”

Given the judicial debate on this case, and the appellate process coming out of the Pridgens, perhaps Professor Mitra was not as bad an instructor as the Facebook page made her out to be.